GAJANAN WAMAN CHIKHALE Vs. RAMDAS BAKARAM THOMBRE

JUDGEMENT

(1.) By this Second Appeal filed under section 100 of the Civil Procedure Code, the original defendants have challenged the concurrent judgments and decrees delivered by Court below decreeing the suit for specific performance filed by present respondents. The defence of original defendants that it was a loan transaction has been found to be not substantiated. The Appeal has been admitted on 10th July 1992 by framing following substantial questions of law :-

(2.) Advocate Chandurkar for appellants has contended that the evidence led by the present appellants to show that it was a loan transaction has not been looked into because of alleged bar of sections 91 and 92 of the Indian Evidence Act. He contends that though the lower Appellate Court has considered this aspect of nature of transaction, the same has not been gone into appropriately and the consideration is perverse. He points out that in plaint as filed, respondents stated that original defendant who entered into agreement was Karta of joint family and transaction was for legal necessity. However, while leading evidence PW 1 Ramdas turned around and stated that property was self-acquired property of deceased Wamanrao and, therefore, according to Advocate Chandurkar, this necessitated in-depth consideration of the legal necessity and its effect. Lastly, he argues that the subjectmatter of agreement at Exh.50 is a residential house which is the only residential house of present appellants. He stated that because it was a loan transaction, Wamanrao offered it as security and he contends that Wamanrao never intended to sell it. In the alternative, he points out that sale of only residential house will throw the entire family on streets and this being an undue hardship, in view of discretion available to this this Court under section 20 of the Specific Reliefs Act, specific performance should not be granted. He also invites this Court's attention to documents like Exhs. 56 Exh. 99 on record, to substantiate his contention.

(3.) Advocate Sonbhadre with Adv. Amle for respondents contends that the trial Court has considered even oral evidence in relation to loan transaction and has found that it was not a loan transaction. According to him, bar as per Section 91 and 92 of the Evidence Act has been pointed out by the trial Court, but the trial Court by way of abundant precaution has also considered oral evidence in relation to nature of transaction at Exh. 50. He further relies upon findings of lower Appellate Court in paragraph 17 of its judgment to contend that the transaction has been concurrently found to be not a loan transaction. He further argues that though there is evidence on record by PW 1 that property was self-acquired property, PW 1 stated that transaction was for legal necessity and the judgment and decree of the trial Court treating the property as joint family property was not assailed by present respondents. He argues that the present respondents led sufficient evidence on record to show the legal necessity of the family and he invites attention to consideration in this respect by trial Court. He points out that there was no other property in the hands of deceased Wamanrao and, therefore, in order to save his agricultural land, he was forced to sell the residential house. According to him, in such circumstances, the difficulty or hardship being pointed out is not unforseen and decree for specific performance cannot be refused.